File Number: 34845 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ONTARIO SUPERIOR COURT OF JUSTICE)
IN THE MATTER OF A CONTESTED ELECTION APPLICATION PURSUANT TO PART 20 OF THE CANADA ELECTIONS ACT, S.C. 2000, C. 9, ARISING OUT OF THE 41ST GENERAL ELECTION IN THE ELECTORAL DISTRICT OF ETOBICOKE CENTRE HELD MAY 2, 2012
B E T W E E N: TED OPITZ Appellant -and-
BORYS WRZESNEWSKYJ Respondent -and-
ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), ALLAN SPERLING (RETURNING OFFICER, ETOBICOKE CENTRE), ANA MARIA RIVERO, SARAH THOMPSON and KATARINA ZORICIC
Respondents ______
FACTUM OF THE RESPONDENT, BORYS WRZESNEWSKYJ ______
Gardiner Roberts LLP Gowling LaFleur Henderson, LLP 40 King Street West, Suite 3100 160 Elgin Street, Suite 2600 Toronto, Ontario Ottawa, Ontario M5H 3Y2 K1P 1C3
Gavin J. Tighe Guy Regimbald (P) 416-865-6664 (P) 613-786-0197 (F) 416-865-6636 (F) 613-563-9869 email: [email protected] email: [email protected]
Stephen A. Thiele (P) 416-865-6651 (F) 416-865-6636 email: [email protected]
Counsel for the Respondent, Agent for the Respondent, BORYS WRZESNEWSKYJ BORYS WRZESNEWSKYJ
FASKEN MARTINEAU DUMOULIN LLP FASKEN MARTINEAU DUMOULIN LLP Lawyers Lawyers 333 Bay Street, Suite 2400 1300 – 55 Metcalfe Street Toronto, Ontario Ottawa, Ontario M5H 2T6 K1P 6L5
W. Thomas Barlow Stephen B. Acker (P) 416-868-3403 (P) 613-236-3882 (F) 416-364-7813 (F) 613-230-6423 email: [email protected] email: [email protected]
Counsel for the Appellant, Ted Opitz Ottawa Agent for the Appellant, Ted Opitz
BORDEN LADNER GERVAIS LLP BORDEN LADNER GERVAIS LLP 40 King Street West, Suite 4400 1100 – 100 Queen Street Toronto, Ontario Ottawa, Ontario M5H 3Y4 K1P 1J9
David DiPaolo Barbara A. McIsaac, Q.C. (P) 416-367-6108 (P) 613-237-5160 (F) 416-361-2454 (F) 613-230-8842 email: [email protected] email: [email protected]
Counsel for the Respondents, Ottawa Agents for the Respondents Marc Mayrand and Allan Sperling Marc Mayrand and Allan Sperling
THE ATTORNEY GENERAL OF CANADA THE ATTORNEY GENERAL OF CANADA Department of Justice Department of Justice Ontario Region Bank of Canada Building – East Tower The Exchange Tower 1212 – 234 Wellington Street 130 King Street West Ottawa, Ontario Suite 3400, Box 36 K1A 0H8 Toronto, Ontario M5X 1K6
Peter Hajecek Christopher M. Rupar (P) 416-973-9035 (P) 613-941-2351 (F) 416-952-4518 (F) 613-954-1920 email: [email protected] email: [email protected]
Counsel for the Respondent, Ottawa Agent for the Respondent The Attorney General of Canada The Attorney General of Canada
WADDELL, RAPONI FRASER MILNER CASGRAIN LLP 1002 Wharf St. 99 Bank Street, Suite 1420 Victoria, British Columbia Ottawa, Ontario V8W 1T4 K1P 1H4
John D. Waddell, Q.C. David R. Elliott Harold Turnham (P) 613-783-9639 (P) 250-385-4311 Ext: 201 (F) 613-783-9690 (F) 250-385-2012 email: [email protected] email: [email protected]
Counsel for the Intervener Keith Ottawa Agent for the Intervener Keith Archer (Chief Electoral Officer Archer (Chief Electoral Officer of British Columbia) of British Columbia)
SHORES JARDINE FRASER MILNER CASGRAIN LLP 10104 - 103 Avenue, Suite 2250 99 Bank Street, Suite 1420 Edmonton, Alberta Ottawa, Ontario T5J 0H8 K1P 1H4
William W. Shores, Q.C. David R. Elliott (P) 780-448-9275 (P) 613-783-9639 (F) 780-423-0163 (F) 613-783-9690 email: [email protected] email: [email protected]
Counsel for the Intervener Ottawa Agent for the Intervener O. Brian Fjeldheim O. Brian Fjeldheim (Chief Electoral Officer of Alberta) (Chief Electoral Officer of Alberta)
KOCH THORNTON LLP BLAKE, CASSELS & GRAYDON LLP 360 Bay Street, Suite 400 45 O’Connor, 20th Floor Toronto, Ontario Ottawa, Ontario M5H 2V6 K1P 1A4
Allison A. Thornton Nancy K. Brooks Shashu Clacken Reyes (P) 613-788-2200 (P) 416- 216-0225 (F) 613-788-2247 (F) 416-368-6302 email: [email protected] email: [email protected]
Counsel for the Intervener Canadian Ottawa Agent for the Intervener Civil Liberties Association Canadian civil liberties Association I N D E X Page
PART I - OVERVIEW AND STATEMENT OF FACTS…………………………… 1
- Justice Lederer’s decision should be upheld.……………………………... 1 - Position of Opitz is untenable...... …………………….... 2 - Relevant Facts...... ……..... 5 - Justice Lederer set aside 79 ballots ...... 5 - 41 ballots set aside for failures in registration ...... 6 - 26 votes properly rejected at Poll 426 ...... 7 - Justice Lederer was justified in rejecting at least 15 votes in Poll 31...... 8 - Elector’s failure to sign an RC is fatal to the Elector’s vote..……………... 9 - 27 votes were rejected due to improper vouching...……………………….. 10 - Vouching is a pre-condition to voting...…………………………………..... 11 - Justice Lederer was justified in rejecting at least 8 votes in PD 21.……….. 12 - Justice Lederer was justified in rejecting 4 ballots at Poll 30...……………. 13 - Justice Lederer was justified in rejecting 7 votes at Poll 502 ...………….... 13 - Justice Lederer was justified in rejecting 8 votes at Poll 174 …………...... 14
PART II - QUESTIONS IN ISSUE ...... ……... 14
PART III - STATEMENT OF ARGUMENT…………………………………....……... 15
-Standard of Review ...... 15 - Purpose of the Act is to maintain confidence in the Federal electoral process .16 - Presumption of regularity was properly applied by Justice Lederer .....…... 19 - The word “irregularity” was properly interpreted broadly by Justice Lederer ..23 - Justice Lederer did not reverse onus of proof when reviewing RCs...... ….. 27 - Justice Lederer made findings of fact at Poll 426 ...... ………..... 27 - Justice Lederer made findings of fact at Poll 31...... 29 - Justice Lederer was justified in rejecting votes where certificates were unsigned by the elector...... 31 - Vouching is a pre-condition of identification ...... 32 - Vouching was improper at Poll 30 ...... 32 - Vouching was improper at Poll 21 ...... 33 - Vouching was improper at Poll 502 ...... 33 - Vouching was improper at Poll 174 ...... 34 - “Magic number” test should not be displaced ...... 35 - Admissions made by Elections Canada ...... 37
PART IV - COSTS………………………………..……………...... … 38
PART V - ORDER REQUESTED …………………………………………………...... 38
PART VI - TABLE OF AUTHORITIES………………………………...……………… 39 PART I – OVERVIEW AND STATEMENT OF FACTS
Justice Lederer’s decision should be upheld
1. The Respondent, Borys Wrzesnewskyj (“Borys”), supports the decision of the Honourable Mr.
Justice Lederer to declare the 41st General Election in the electoral district of Etobicoke Centre
null and void on the grounds that irregularities exceeding the 26 vote margin of victory of the
Appellant, Ted Opitz (“Opitz”) affected the results of the election. In rendering his decision,
Justice Lederer properly balanced the right to vote possessed by Canadians against the complete
regulatory code carefully enacted by Parliament under the Canada Elections Act (the “Act”),
which is purposefully designed to transform the intangible right to vote into the tangible ballot
when an elector meets the mandatory pre-conditions established thereunder to exercise his or her
franchise and to ensure integrity in our Federal electoral process.
2. As stated in Borys’ “Appellant’s” factum, the purpose of the Act is to ensure that only qualified
and entitled voters cast ballots in a Federal election and to maintain confidence in the integrity of
the Federal election process. Without confidence in the integrity of the election process the very
foundation of Canadian democracy would crumble. This is underscored in the following
statement made by the Supreme Court of Canada in Harper v. Canada:
Maintaining confidence in the electoral process is essential to preserve the integrity of the electoral system which is the cornerstone of Canadian democracy. In R. v. Oakes…Dickson C.J. concluded the faith in social and political institutions, which enhance participation of individuals and groups in society, is of central importance in a free and democratic society. If Canadians lack confidence in the electoral system, they will lack faith in their electoral representatives. Confidence in the electoral process is, therefore, a pressing and substantial objective.
Reference: Wrzesnewskyj’s Book of Authorities, Harper v. Canada (AG), 2004 CarswellAlta 646 (S.C.C.), Tab 1, at para. 103
3. Maintaining the integrity of the electoral system is of paramount importance to the Court and to
the electorate. Notwithstanding that there might be adverse effects on an individual voter, the
Courts have chosen to support and maintain the integrity of the system.
Reference: Wrzesnewskyj’s Book of Authorities, Hogan v. Careen and Hickey, 1993 CarswellNfld 54 (TD), Tab 20, at para. 30
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4. Generally, Justice Lederer’s decision was based upon findings of fact. He correctly applied the
civil standard of balance of probabilities to evidence presented by all of the parties including
Elections Canada to determine the facts necessary to reject 79 ballots. In meeting this burden of
proof, Borys relied upon the certified documents created by election officials on May 2, 2011
(“Election Day”), the Report of the Returning Officer created after Election Day, the affidavits
of Michel Roussel and Allan Sperling (submitted by the Chief Electoral Officer and Returning
Officer or collectively “Elections Canada”), cross-examinations of Mr. Sperling, the Deputy
Returning Officer for Polling Division 16 and the Central Poll Supervisor for Polling Divisions
28, 29, 30 and 31, along with emails from an investigation conducted by Mr. Sperling in relation
to polling divisions 31, 89 and 426. Borys rebutted the presumption of regularity on this evidence
and proved as a fact on the balance of probabilities that a number of votes were irregularly cast
and ought not to have been counted as valid ballots. These irregularly cast ballots affected the
results of the election as they exceeded the plurality of 26 votes.
5. It is respectfully submitted that Justice Lederer’s decision should be shown deference. Contrary to
the submissions of Opitz, Justice Lederer’s conclusions do not involve questions of law or mixed
questions of law and fact. Justice Lederer made findings of fact on the evidentiary record and
then applied the law as set out in the Act and the jurisprudence to those findings of facts.
Position of Opitz is untenable
6. The positions of Opitz are based on sophistry and double standards. In essence, Opitz contends
that once a ballot has been deposited into the ballot box, it is a good ballot and no one can
question whether it was cast by an unqualified or unentitled elector. The argument is
fundamentally one of the end justifying the means. Opitz’s position would effectively render the
statutory requirements nugatory.
7. Although Opitz complains that Justice Lederer misapplied the presumption of regularity and
inappropriately reversed the onus of proof, which is respectfully denied by Borys, he really
contends that the presumption of regularity is in fact a conclusion of regularity.
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8. Opitz further contends that part-time, hurriedly trained election workers “should be lauded” for
not following the strict pre-conditions of the Act when it suits his cause, but he then reverses the
very same facts to buttress any substantive errors which would otherwise hurt his cause.
9. Opitz’s reliance on double standards is further revealed by his interpretation of the word “shall”.
In the mandatory judicial recount conducted for Etobicoke Centre by the Honourable Madam
Justice Himel, Opitz successfully argued that the word “shall”, as used under the Act, had a
mandatory meaning to defeat ballots which were marked with an “X” outside of the circle found
thereon, but clearly within the name of a particular candidate. This was simply because there
were more such marked ballots for Borys than there were for Opitz. In this regard, Opitz took a
strict view that the word “shall” in the Act entailed a mandatory requirement as that position took
away votes for Borys. However, Opitz now contends that the word “shall” when used in the pre-
conditions in the Act which are required to gain entitlement to vote and which turn the intangible
right to vote into the tangible ballot, are merely “directory” because the evidence found in the
certified election documents and elsewhere reveal that the pre-conditions which regulate the
handing out of a ballot were not met in far more than 26 instances. Accordingly based on
numerous judicial authorities those ballots should never have been placed into the ballot box and
counted in the result.
10. The position of Opitz, if accepted by this Honourable Court, would render the word
“irregularity” in s. 524 of the Act meaningless and would effectively do away with the
fundamental and necessary structure by which our Federal elections are organized so as to permit
Canadians to vote in a uniform manner across a riding and across the country.
11. The untenability of the position of Opitz is underscored by his new submission made for the first
time on this appeal that an untested statistical analysis advanced by Professor Tom Flanagan, the
former Chief of Staff of Conservative Prime Minister Stephen Harper and Conservative campaign
communications director, in a newspaper article written following the release of Justice Lederer’s
decision should now somehow be the law. This is despite the fact that Opitz had agreed otherwise
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throughout this case and had submitted in argument before the Honourable Court below that an
election must be declared void if the “magic number” of ballots found to have been improperly
cast exceeds the margin of victory.
12. Lastly, Opitz’s new position made for the first time on this appeal that only direct evidence of
irregularities should be sufficient, would inevitably lead to a violation of the sanctity of the
secrecy of the ballot which has been enshrined into the Act. Opitz now submits that, in an
argument that was not advanced before Justice Lederer, in order to bring a successful contested
election application, an applicant must prove by direct evidence that a pre-condition to voting was
not met and that the actual candidate for whom a ballot was cast should be determined with
certainty. That direct evidence can only come from the electors themselves. The principle of the
secrecy of the ballot evolved from a time when elections were conducted by a show of hands and
there was abuse and voter intimidation. Opitz would apparently have this Honourable Court
endorse a contested election process, which is statutorily mandated to be conducted in a summary
way, which would theoretically result in a parade of electors giving viva voce or affidavit
evidence either for or against certain candidates or political parties. The ramifications that would
result from the process Opitz now proposes for the first time on this appeal would place our
democracy in jeopardy and turn many people, particularly those immigrants who have come to
Canada from nations where governments are ruled by an iron-fist and where discovery of the
political party an elector supported may have dire consequences, away from voting. It is for this
reason that the Ontario Divisional Court in Cusimano v. Toronto (City) wisely rejected evidence
obtained from voters by a winning municipal candidate to support her appeal in a contested
election case and stated that where evidence in a contested election case is to be garnered from
election officials, it should be presented through a neutral, third party, such as the body
responsible for conducting the election.
Reference: Wrzesnewskyj’s Book of Authorities, Cusimano v. Toronto (City), 2011 ONSC 727 (Div. Ct.), leave to appeal granted, Tab 21
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13. Fundamentally this appeal relates to a choice between two views of the requirements of proof of
identity and residence designed to ensure that only qualified voters entitle themselves to vote on
election-day. On the one hand, Opitz urges a view of these statutory provisions as mere directory
guidelines or suggestions which provide directions to election officials on how polls should be
run on election-day. From Opitz’s perspective once a ballot is in the box it is a good ballot and
the breaches of the provisions of the Act cannot result in the ballot being declared invalid. In
Opitz’s view, substantive irregularities in the vote on election-day should either be ignored or
resuscitated ex post facto through a never ending stream of potential evidence, including a
forensic analysis of the vote, but should never be set aside. On the other hand, Borys takes the
position that the statute sets out clear pre-conditions through which qualified electors entitle
themselves to receive a ballot on election-day. If the evidence proves on a balance of probabilities
that these mandatory pre-conditions of entitlement to vote were not met, then the ballot is invalid.
If sufficient invalid ballots are found to exceed the plurality of the election then these
irregularities have clearly affected the result of the election. Justice Lederer and all of the other
jurisprudence on the issue (including authority from the Supreme Court of Canada) agree with
Borys’ position.
Relevant facts
Justice Lederer set aside 79 ballots
14. Justice Lederer set aside a total of 79 votes in 7 of the 10 polling divisions (“PD”) which were
reviewed in this contested election application. In general, those votes were set aside for failure of
registration and failure of vouching. Within each of these two broad categories are subcategories
relating to the failures to comply with the mandatory statutory requirements.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2
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41 ballots set aside for failures in registration
15. With respect to registration, Justice Lederer set aside 41 votes because Registration Certificates
were never accounted for and there could be no assurance that the elector made the required
signed declaration in order to entitle themselves to vote.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2 16. A Registration Certificate (“RC”) is a prescribed form under the Act. Pursuant to s. 161(1) the
RC is used to permit an elector, as defined under s. 2 of the Act, whose name is not on the list of
electors to register on the list in a polling division in person on Election Day. The elector must
prove his or her identity pursuant to one of the three prescribed pre-conditions established under
s. 143(2)(a) or (b) or (3) of the Act. Section 161(4) further mandates that the elector shall sign the
RC. It is only through the RC that the list of electors is deemed to be modified for the purposes of
the Act. The Act requires that only persons on the list of electors are entitled to vote.
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, Tab 5, ss. 143(2)(a), (b) and (3), and s. 161 Reference: Joint Condensed Record, Roussel Affidavit, Tab 51, paras. 42, 43 and 45 17. In order to vote in a Federal election, a qualified elector must be placed on the list of electors for
the polling division in which he or she is ordinarily resident. The elector must vote at the polling
station for his or her polling division.
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, S.C. 2000, c. C-9, Tab 5, s. 6 18. An elector may also be required to register to vote by RC because he or she is not on the list in
the PD of their ordinary residence. An RC enables an otherwise qualified elector to be placed on
the list of electors and thereby become entitled to vote at the elector’s polling station of his or her
ordinary residence.
Reference: Joint Condensed Record, Roussel Affidavit, Tab 51, para. 44 19. The manuals provided to Registration Officers, Deputy Returning Officers and Poll Clerks
instruct these polling officials that an RC is to be signed and dated by the elector.
Reference: Joint Condensed Record, Registration Officers Manual, Tab 48, pp. 16 and 17
Reference: Joint Condensed Record, DRO and Poll Clerk Manual (Ordinary Poll), Tab 49, pp. 53-55
Reference: Joint Condensed Record, DRO and Poll Clerk Manual (Mobile Poll), Tab 50, pp. 44-46
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20. For an elector voting by RC, the Poll Clerk is statutorily required to record the elector’s name and
address on the appropriate page of the PB (i.e. the “Record of Electors Voting by Registration
Certificate”). After the elector has voted, the Poll Clerk is required to write “voted” beside the
elector’s name in the PB. RCs are then to be deposited by the Poll Clerk into the Registration
and/or Correction Certificate Envelope which is returned to the Returning Officer (“RO”) and
the data from the RCs is to be entered into the Final List of Electors (“FLE”).
Reference: Joint Condensed Record, Roussel Affidavit, Tab 51, paras 75 and 76
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, supra, Tab 5, s. 162(1)(j)
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2 26 votes properly rejected at Poll 426
21. In Poll 426, the Poll Book (“PB”) records 33 names on the “Record of Electors Voting by
Registration Certificate”. The addresses, which were required to have been included, are not.
Justice Lederer summarized that this was the only record of anyone in PD 426 voting by RC since
no RCs were produced and the number (33) was not repeated on page 31 of the PB. Page 31 was
blank.
Reference: Joint Condensed Record, Poll Book, Polling Division 426, Tab 39, pp. 18, 19 and 31
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, para. 106 22. Justice Lederer was advised that when an election is over and the votes have been counted, the
RCs for each PD are required to be delivered to the Returning Officer for the particular electoral
district. It is the RO’s responsibility to then update the Official List of Electors (“OLE”) by
adding to it the names of those who voted by RC. The product of this work is the FLE. The
lawyer for Elections Canada advised Justice Lederer that no names from Poll 426 were added to
the FLE, and thus Justice Lederer held that the safeguard that the FLE represents did not provide
any assurance that the RCs were ever prepared at Poll 426.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 109 23. While the lawyer for Opitz submitted that there was enough evidence to conclude that the RCs
had been completed, Justice Lederer noted that it was quite clear that two people were engaged in
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filling out the PB for PD 426, which was also contrary to the regular manner prescribed under the
Act.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 111
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, supra, Tab 5, s. 162 24. Justice Lederer also reviewed an email from the RO who reported that the DRO for Poll 426 had
advised him that “she thought they completed the registration certificates and returned them as
per the process”, that “33 registrants sounds about right” and that “she has done this many times
so knows the process”.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 112 25. Justice Lederer concluded that the comment that the DRO “thought” the forms were completed
was not definitive, and that her statement that “33 sounds about right” was too general to provide
much confidence as to whether the RCs were completed. Accordingly, on a balance of
probabilities, Justice Lederer was not satisfied on the facts that these 33 people had properly been
deemed to be replaced on the list by RC and become entitled to vote. Justice Lederer found as a
fact that they had not made the necessary signed declaration.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 115 26. Justice Lederer, however, subtracted 7 votes from the 33 ballots cast by unregistered electors on
the grounds that 7 of them were already on the OLE for PD 426 and therefore they should not
have completed and voted by RC at all.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 116 Justice Lederer was justified in rejecting at least 15 votes in Poll 31
27. In PD 31, the PB records 86 electors on the record of electors voting by RC. However, only 70
RCs were produced by Elections Canada with respect to this PD.
Reference: Joint Condensed Record, Poll Book, Polling Division 31, Tab 23, pp. 18-21
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 117 28. As in Poll 426, the lawyer for Elections Canada advised the Court that no completed RC’s had
been delivered to the RO after the election as required and no one was added to the FLE as a
result of the preparation of any supposed RC for Poll 31. As in Poll 426, Justice Lederer
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concluded that the safeguards provided by the pages in the PB and the FLE did not assist in
confirming that the 16 RCs were actually prepared and the necessary signed declaration had, in
fact, been made.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 117 29. The RO also spoke to the Registration Officer, DRO and Poll Clerk for Poll 31. The Registration
Officer told the RO that “elderly” voters who came to this PD, but were registered to vote at
another PD stationed at a completely different location, were allowed by her to vote at Poll 31.
Conversely, the DRO and Poll Clerk told the RO that they had no recollection of electors
registered at other PDs being permitted to vote at Poll 31. Justice Lederer factually concluded
from these statements that it was not clear what took place at this Poll and that generally the
comments did not reflect favourably on what happened at Poll 31 and with regard to the
regularity of the votes cast as a result of the “missing” RCs.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 121 30. Justice Lederer then concluded that the placement of the names in the PB, in the absence of those
persons having been added to the FLE, did little to confirm that RCs were prepared. Justice
Lederer found as a fact that the necessary pre-condition of signing the certificate and declaring its
contents to be true had not been fulfilled. Accordingly Justice Lederer found as a fact that on a
balance of probabilities these 16 people had not fulfilled the necessary pre-condition of a signed
declaration of qualification to vote.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 122 31. Justice Lederer ultimately concluded that 15 of these 16 votes should be rejected. In his “cross-
appeal”, Borys contends that all 16 votes should have been rejected.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 123 Elector’s failure to sign an RC is fatal to the Elector’s vote
32. With respect to PD 174, the RC for elector 174-18-3 was unsigned and undated by the elector.
While the RC was signed in Box 6 by the election official, Justice Lederer did not accept this as a
sufficient safeguard for the required statutory pre-condition of a signed certification of the
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qualification to vote. Justice Lederer concluded that the question of qualification to vote stood
apart from the other irregularities that had so far been considered by him and that this was the
fundamental premise on which the right to vote was based. In the face of the clear documentary
evidence that the statutory pre-condition had not been met. Justice Lederer was not prepared to
find that the necessary pre-condition set out in the Act regarding identity, citizenship and
residency had been properly certified. The vote cast by this person was accordingly set aside.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 126 33. With respect to PD 89, there were 10 RCs that were not signed by the respective electors. Opitz
submitted that since the Registration Officer had signed the RCs in the place where the elector
was required to have signed that this was sufficient to demonstrate the qualification to vote, or
alternatively, that the polling official signed on behalf of the voter. Justice Lederer concluded that
he found some of the requirements of the Act related to issues that were more fundamental and
important than others and that the signed certification of the qualification to vote was an essential
prerequisite to being entitled to vote. There was nothing to suggest that the prospective voters
were asked to, or did, declare in writing that they were qualified and entitled to vote. There was
no support for the suggestion that the official signed on behalf of the elector (unlike at PD 83-1
where the DRO had carefully signed the RC “per” the elector). Justice Lederer made the factual
determination that the RCs were consistent with the polling official signing the document on his
or her own behalf, albeit in the wrong place, and thus the 10 votes were set aside.1
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 127 27 votes were rejected due to improper vouching
34. Justice Lederer rejected a total of 27 ballots as a result of irregularities related to improper
vouching.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 153
1 The certified election documents show that the same Registration Officer also improperly signed 76 other certificates in PDs 81, 82, 83, 84, 85, 86, 87 and 88 in Box 5 and that the electors accordingly did not sign any of the certificates.
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Vouching is a pre-condition to voting
35. Vouching is one of the statutory mandated methods by which an elector (registered or
unregistered) can meet the mandatory pre-condition of identification. Pursuant to the Act,
vouching is necessary where an elector is unable to provide prescribed identification documents
as established under s. 143(2)(a) or (b). Subsection (a) permits an elector to meet the pre-
condition for identification by producing one form of prescribed government issued identification
that contains a photo of the elector, his or her name and his or her address. Subsection (b) permits
an elector to meet the pre-condition for identification by producing two pieces of identification
authorized by the CEO, each of which establishes the elector’s name, and at least one of which
establishes his or her address.
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, supra, Tab 5, s. 143(2)(a) and (b) 36. If an elector must prove his or her identity by vouching, both the elector and the person vouching
for him or her are required to take an oath. The oaths for the voucher and the person vouched for
are administered orally and the text of the oaths is found on pages 15 and 16 of the PB.
Reference: Joint Condensed Record, Roussel Affidavit, Tab 51, para. 66
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, supra, Tab 5, s. 143(3)
Reference: Joint Condensed Record, Sample Poll Book, Tab 12, pp. 15 and 16 37. The voucher must be an elector and must live in the same polling division as the vouchee.
Reference: Joint Condensed Record, Roussel Affidavit, Tab 51, para. 69
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, supra, Tab 5, s. 143(3) 38. It is upon the administration of the oaths that the Poll Clerk records the names and addresses of
both electors, the voucher and the vouchee, in the PB, as well as the type of oath taken and
whether it was sworn or solemnly affirmed. This recording in the PB is a mandatory statutory
requirement.
Reference: Joint Condensed Record, Roussel Affidavit, Tab 51, para. 70
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, supra, Tab 5, s. 162(1)(f)
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Justice Lederer was justified in rejecting at least 8 votes in PD 21
39. With respect to Poll 21, 8 ballots were rejected by Justice Lederer on the grounds that notations
made in the PB for PD 21 demonstrated a concern that vouching was done improperly. There
were references to “no photo” and “photo” beside the names of 8 electors listed on p. 22 of the
PB.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 143 40. More specifically, these 8 electors and the respective notations beside their names were as
follows: 21-22-2 “ON LIST NO PHOTO ID OR ADD”, 21-22-7 “ON LIST NO ADD OR
PHOTO ID”, 21-22-9 “PHOTO ID BUT NO ADD”, 21-22-10 “NO PHOTO OR ADD ID”, 21-
22-11 “NO PHOTO OR ADD ID”, 21-22-12 “PHOTO BUT NO ADDRESS”, 21-22-13 “NO
PHOTO OR ADD ID” and 21-22-14 “PHOTO BUT NO ADD ID”.
Reference: Joint Condensed Record, Poll Book, Polling Division 21, Tab 17, p. 22 41. Justice Lederer determined that the requirement for a photograph referred to the first of the three
means by which an elector can identify himself for the purpose of obtaining a ballot. In the
absence of a photograph or compliance with the second means of prescribed identification, in
order to be given a ballot, the elector would require a voucher to prove their identity and
residence. The notations in the PB indicated that no proper identification had been produced.
Accordingly, Justice Lederer properly made a finding of fact that the comments in the PB
reflected a person seeking to identify him or herself in order to be admitted to vote, for which
they would necessarily require vouching as a pre-condition of entitlement to properly cast a
ballot.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 143 42. Page 23 of the PB for PD 21, the page where people vouching are to be listed, is blank.
Accordingly, Justice Lederer concluded on the basis of the certified evidence in the PB and found
as a fact that there was no proper vouching.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 143
TORONTO: 329319\1 (96776) 13
Justice Lederer was justified in rejecting 4 ballots at Poll 30
43. With respect to Poll 30, p. 22 lists 11 people requiring an oath. Reading pp. 22 and 23 together,
10 people vouched for another. Of those 10, Borys questioned 4 on the grounds of multiple
vouching and ineligible vouchers.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 145
Reference: Joint Condensed Record, Poll Book, Polling Division 30, Tab , pp. 22 and 23 44. Pursuant to s. 161(6) of the CEA multiple vouching is prohibited. In fact, it is an offence under
the Act.
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, supra, Tab 5, ss. 161(6) 45. Justice Lederer concluded and found as a fact that there were two vouchers who each vouched for
two electors and therefore discounted 2 of the 4 votes on this ground. Justice Lederer specifically
stated that vouching was an important undertaking. It was the means of identification of an
elector, entitling him or her to vote. If an elector is not properly identified, it cannot be said that
they should have received a ballot.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 145 46. Justice Lederer rejected the remaining 2 votes on the grounds that the persons who had done the
multiple vouching also did not reside in the same PD as the vouchee and were therefore not
qualified vouchers in the first place. The Learned Judge held that the vouching provision and its
requirements – including the residence requirement – had to be strictly complied with.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at paras. 151 and 152 Justice Lederer was justified in rejecting 7 votes at Poll 502
47. At Poll 502, 7 electors voted by vouching. Justice Lederer reached the factual conclusion, and it
is not in dispute, that none of the 7 vouchers lived in the same polling division as the vouchees.
Accordingly, none of these vouchers were qualified to validly vouch pursuant to the mandatory
requirements of the Act.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 149
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48. Justice Lederer properly applied the intentionally strict vouching provisions of the Act and
concluded that these 7 votes should be rejected. The statutory pre-condition of identification had
not been met.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at paras. 151 and 152 Justice Lederer was justified in rejecting 8 votes at Poll 174
49. At Poll 174, p. 23 of the PB revealed that 8 people appeared to have vouched for someone. Page
31 of the PB further records that 8 people voted by vouching.
Reference: Joint Condensed Record, Poll Book, Polling Division 174, Tab 33, pp. 22, 23 and 31 50. Justice Lederer stated that with respect to these 8 votes the question to be determined was
whether the vouching was proper and in compliance with the Act. Justice Lederer concluded and
found as a fact that vouching was not done properly and thus he rejected these 8 votes.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 146 PART II – QUESTIONS IN ISSUE
51. It is respectfully submitted that Justice Lederer did not commit any error in concluding that Borys
satisfied the burden to establish the existence of “irregularities” within the meaning of s. 524 of
the Act, having regard to both the presumption of regularity and the onus of proof he was
required to satisfy. In fact, Elections Canada argued before Justice Lederer that there should be no
presumption of regularity and Borys agreed that the onus was upon him to establish, on a balance
of probabilities, that there were sufficient irregularities which affected the results of the election.
52. Similarly, it is respectfully submitted that Justice Lederer did not commit any error in concluding
that Borys had satisfied his burden to establish that the irregularities complained of affected the
results of the election within the meaning of s. 524 of the Act. Opitz submitted before Justice
Lederer that the “magic number” test applied throughout contested election law should be applied
to Borys’ application. However he went one step further and contended that without actual
evidence for which candidate a rejected ballot was cast, the Court was required to somehow
TORONTO: 329319\1 (96776) 15
allocate those rejected ballots among all candidates. This submission was pure speculation and
was unsupported by any evidence. Accordingly, Justice Lederer rightly rejected this submission.
53. Essentially, what Opitz now contends on this appeal is that for any contested election application
to succeed there must be direct evidence for whom a rejected ballot has been cast. This would
violate the statutorily enshrined principle of the secrecy ballot, shatter confidence of the electorate
in our Federal electoral system and return Canada to the equivalent of a time when voting by a
show of hands led to wanton and unchecked bullying and voter intimidation. The sanctity of the
secrecy of the vote ought never to be violated. It is for this reason that the parties (including
Opitz) agreed to have the application proceed with complete anonymity of the voter in the public
arena and to prevent all sides to the dispute from gathering evidence from individual electors.
PART III – STATEMENT OF ARGUMENT
Standard of Review
54. Borys agrees that the standard of review on an appeal involving pure questions of law or
questions of mixed law and fact is correctness. However, it is respectfully submitted that Opitz’s
complaints with respect to the specific ballots rejected by Justice Lederer attack findings of fact
for which this Honourable Court must grant deference. This is so notwithstanding that the
application before Justice Lederer proceeded on an entirely paper record.
Reference: Wrzesnewskyj’s Book of Authorities, Housen v. Nikolaisen, [2002] 2 S.C.R. 235, Tab 6
Reference: Wrzesnewskyj’s Book of Authorities, Fendelet v. Dohey, 2007 ONCA 475 (CanLII), Tab 7, at para. 4 55. While Opitz contends that all of the alleged errors made by Justice Lederer involve questions of
law, it is respectfully submitted that Justice Lederer’s findings are based on findings of pure fact
made after a thorough review of the evidentiary record, due consideration of the legal principles
that applied to the application, including consideration of the presumption of regularity, the
appropriate standard of proof to be applied and who bore the onus of proof.
56. Justice Lederer understood the constraints on the evidence (particularly given that Elections
Canada, as the neutral party, was not willing to bring forward the evidence of election workers),
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his ability to draw inferences (where necessary) from the election or business records of Elections
Canada required by the Act to be accurately recorded and maintained by election officials on
Election Day and the fact that Elections Canada provides specific training to election officials for
their specific position, manuals and guides to ensure that every polling station within an ED and
across the country is operated uniformly, and without the inherently variable voluntary exercise
of subjective discretion by election day workers.
57. Borys agrees with the submission found at para. 26 of Opitz’s factum that pursuant to the Act,
Borys was entitled to an order that the election in Etobicoke Centre was null and void where he
had shown irregularities of a type that could affect the outcome of the election. Borys did not
need to go behind the ballots rejected to determine for whom a rejected ballot was cast and,
contrary to the internally inconsistent submissions of Opitz, no speculative, untested and biased
statistical analysis must be conducted in order to meet the requirements of the Act.
58. Of note, the quasi-statistical analysis approach of Professor Flanagan fails to consider that the
application before Justice Lederer was restricted to a review of a sampling of only 10 polls
representing less than 5% of the polls in Etobicoke Centre. Taking Professor Flanagan’s
calculations, and assuming the 10 polls represented a statistical sampling of all polls in the ED,
his conclusions would necessarily have to be multiplied by 20, which figure would far exceed the
plurality of 26 votes even on Professor Flanagan’s speculative and partisan analysis.
Purpose of the Act is to maintain confidence in the Federal electoral process
59. Paragraphs 30 to 32 of Opitz’s factum present a one-sided view of the purpose of the Act.
Although one of the purposes of the Act is to turn the intangible right to vote into the tangible
ballot that is eventually cast into the ballot box through compliance with the mandatory pre-
conditions of identification and registration, another purpose of the Act is to prevent fraud and
ensure that there can be confidence in the integrity of the electoral system. This latter purpose
was examined in detail by the British Columbia Superior Court in Henry v. Canada where the
proof of identity provisions contained in the Act were challenged under s. 3 of the Charter.
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Although the Court held that the identification provisions violated s. 3, they were upheld
following evidence provided by Elections Canada and presented by the Attorney General of
Canada and provided by Elections Canada and held to be reasonable limits on the Charter right to
vote.
Reference: Wrzesnewskyj’s Book of Authorities, Henry v. Canada (AG), 2010 CarswellBC 1089 (SC), Tab 11 60. The Act is specifically designed to protect credibility and legitimacy in the Federal electoral
process. In a Report to the Standing Committee on Procedure and House Affairs dated June 2006,
Chair Gary Goodyear reported that Canadians had expressed concern about the potential for fraud
and misrepresentation in voting and that its existence undermined the integrity of the process. The
government of the day agreed that instances of voter fraud and instances of individuals voting out
of the mistaken belief that they were eligible to do so affects public confidence in the integrity of
Canada’s electoral process and can affect the result of an election.
Reference: Wrzesnewskyj’s Book of Authorities, Report to the Standing Committee on Procedure and House Affairs, “Improving the Integrity of the Electoral Process: Recommendations for Legislative Change”, June 2006, Chair Gary Goodyear, M.P., Tab 12, pp. 25 and 26
Reference: Wrzesnewskyj’s Book of Authorities, Government Response to the Thirteenth Report of the Standing Committee on Procedure and House Affairs, “Improving the Integrity of the Electoral Process”, Tab 13, p. 2
61. Accordingly, among other legislative changes, s. 148.1 was introduced into the Act. This section
expressly provides that an elector who fails to prove his or her identity and residence shall not
receive a ballot or be allowed to vote.
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, supra, Tab 5, s. 148.1 62. The word “shall” is used throughout the Act. It is used in, among other sections, ss. 148.1, 143
and 161. Pursuant to s. 11 of the Federal Interpretation Act, the word “shall” is to be interpreted
as mandatory. As previously set out in Borys’ “Appeal” factum, Opitz successfully made the
exact same argument in regard to the use of the word “shall” in the Act during the judicial recount
in the subject election.
Reference: Wrzesnewskyj’s Book of Authorities, Interpretation Act, R.S.C. 1985, c. I-21, Tab 14, s. 11
Reference: Wrzesnewskyj’s Book of Authorities, Re Judicial Recount arising out of the 41st General Election in the Electoral District of Etobicoke Centre, 2011 CanLII 36068 (S.C.J.), Tab 4, at paras. 24 and 27
TORONTO: 329319\1 (96776) 18
63. The Courts have further recognized that the franchise of the vote is not an undeniable right. A
franchise by definition only applies to certain classes of people. To become enfranchised
something must be done in the required way. The right, as recognized by the Supreme Court of
Canada in Haig v. Canada, must be exercised. Any exercise necessarily requires a prescribed
form and procedure.
Reference: Wrzesnewskyj’s Book of Authorities, Haig v. Canada (Chief Electoral Officer), [1993] S.C.R. 995, Tab 18, at paras. 104-107
64. This view was recognized in the Federal contested election case of O’Brien v. Hamel, where it
was stated that age and citizenship alone did not confer an automatic entitlement to vote on an
individual and that more was required. Similarly in the Manitoba provincial election case of
McMechan v. Dow, the Court held that the right to vote required both qualification and
entitlement.
Reference: Wrzesnewskyj’s Book of Authorities, O’Brien v. Hamel, 1990 CarswellOnt 764 (Div. Ct.), Tab 8, at para. 17
Reference: Wrzesnewskyj’s Book of Authorities, McMechan v. Dow, [1968] M.J. No. 47 (Q.B.), Tab 15, at para. 17 65. Accordingly, where it can be demonstrated on a balance of probabilities that someone was not
qualified and duly entitled to vote but was allowed to do so anyway his or her ballot must come
out of the ballot box. It is not good enough to suggest, as Opitz asserts, that once the ballot is in
the box it must be concluded to be a good ballot and must be counted toward the result.
66. Borys agrees that elections must not be lightly overturned. Trivial irregularities should never lead
to overturning an electoral result. The Act contemplates no such remedy. However, the statutory
remedy to contest and potentially overturn an election result must have teeth in order to act as a
proper check and balance against not only intentional fraudulent or corrupt and illegal conduct on
the part of rogues, but against complacency, errors and mistakes which have a substantive impact
on the qualification and entitlement of an elector. The mandatory pre-conditions of the Act must
be adhered to otherwise the result of the vote cast in violation of the mandatory pre-conditions in
the Act is meaningless and binds nobody. If the long held statutory requirements of entitlement
are discarded, Canadians will lose faith in their Federal electoral system. It is respectfully
TORONTO: 329319\1 (96776) 19
submitted that the faith of Canadians in the system will be eroded where it becomes known that
rules mandated by the Act may be were strictly adhered to at one polling station according to the
mandatory uniform training received by election workers, but disregarded or voluntarily modified
at another polling station at the whim of a part-time election official. Worse, Canadians, who
value their citizenship and the right to vote that comes with it, will feel betrayed if unqualified or
unidentified people cast ballots in an election, and in close races, actually water down their
validly cast vote. They will also feel betrayed if electors were allow to cast a ballot in breach of
the statutory electoral code in one poll, but electors were turned away at other polls where the
statutory requirements were properly enforced. Elections cannot be decided on the whim and
subjective discretion of polling station personnel. The right to vote is one of the most valued in
any democratic society. It is safeguarded by the strict comprehensive code in the legislation
which ensures that only those entitled to exercise it do so.
Reference: Wrzesnewskyj’s Book of Authorities, Stoddart v. Owen Sound (Town), [1912] O.J. No. 24, leave to appeal refused (1912), 4 O.W.N. 170 (C.A.), Tab 16
Presumption of regularity was properly applied by Justice Lederer
67. Paragraphs 39 to 48 of Opitz’s factum suggest that Justice Lederer failed to properly apply the
presumption of regularity to the circumstances of the case; Borys disagrees.
68. The presumption of regularity does not exist in a vacuum. Instead it is founded on certain factors.
In the municipal election case of Cusimano v. Toronto (City), currently under appeal to the
Ontario Court of Appeal as a result of leave having been granted by that Honourable Court from
the decision of the Divisional Court, the factors were described as follows:
(a) s. 52 of the Municipal Elections Act provided that a DRO at a voting place was to give a person a ballot only if satisfied that the person was entitled to vote there;
(b) the evidence of training given to election officials, of their taking an oath of office, and of the availability to them of reference materials; and
(c) the evidence of some ballot officers who said that they acted through inadvertence and were confident that only persons that were entitled to vote received ballots.
Reference: Wrzesnewskyj’s Book of Authorities, Cusimano v. Toronto (City), supra, Tab 21, at para. 34
TORONTO: 329319\1 (96776) 20
69. In this case, there was a dearth of evidence that election officials acted only through inadvertence
or were confident that only persons that were entitled to vote received ballots. In fact, the
Registration Officer for PDs 28, 29, 30 and 31 advised the Etobicoke Centre RO that she
knowingly permitted electors to improperly vote at her central polling location even though she
was fully aware they lived in other PDs. The Registration Officer justified her “freelancing” on
the grounds that these electors had arrived late in the day and they were elderly. However, the
actual ages of these electors did not substantiate her story.
70. Furthermore it is an offence under the Act for an elector who knows he or she is on the OLE in
another PD to request an RC so as to re-register to get on the list and vote at another PD. If an
elector wants to vote at another PD, the proper procedure under the Act is for the elector to obtain
a Transfer Certificate.
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, supra, Tab 5, ss. 111(1)(b), and 158 to 160
71. At least two other election officials also breached the Act and disregarded their training and
manuals by vouching for more than one elector when they were, in any event, ineligible to vouch
for anyone as they did not even reside in the PD in question.
72. Furthermore, even though guides and manuals were provided, the RO was critical of the
adequacy of training and the usefulness of the materials provided. None of the election officials
were actually tested and scored with respect to their knowledge of the election rules or procedures
mandated by the Act.
Reference: Joint Condensed Record, Examination of Allan Sperling, dated April 3, 2012, Tab 59, Qs. 85-93, pp. 24 and 25
73. While the DRO for PD 16 recalled being quizzed on how to add up the votes and record the
numbers on the p. 29 sheet of the PB, she was not trained on the vouching rules.
Reference: Joint Condensed Record, Examination of C.C., dated April 2, 2012, Tab 60, Q. 200, pp. 51 and 52
74. In the electoral district of Nanaimo-Cowichan in British Columbia, an election official
complained bitterly that inadequate training is provided by Elections Canada. He was quoted as
saying: “I don’t think people have enough training”. These words were similarly echoed by the
TORONTO: 329319\1 (96776) 21
Etobicoke Centre RO in his examination, who said that there was not adequate time provided for
training.
Reference: Wrzesnewskyj’s Book of Authorities, “Returning officer worried workers not properly trained”, The Daily News, May 6, 2011, www.canada.com/nanaimodailynews/news/story.html, CanWest MediaWorks Publications Inc., Tab 22
75. Furthermore, the face of the certified documents presented a large body of evidence which
directly and strongly rebutted any presumption of regularity.
76. The front cover of every PB states as follows: “The Poll Book is completed by the poll clerk
under the direction of the deputy returning officer. The Canada Elections Act requires that an
accurate record of the proceedings throughout polling day be kept and that the following
documents, which are contained inside, be properly completed”. Accordingly, the absence of
vouchers and vouchees where there was evidence demonstrating that names, addresses and oaths
should have been recorded further demonstrated that the election in Etobicoke Centre was not
operated “regularly” or in compliance with the Act.
Reference: Joint Condensed Record, Sample Poll Book, Tab 12, front cover 77. It is respectfully submitted that in the circumstances of this particular case, there was substantial
evidence in the sampling of the various polls to demonstrate that the election in Etobicoke Centre
was not run in a “regular” manner. Accordingly any presumption of regularity was clearly
rebutted on the evidence.
78. Justice Lederer accepted that Borys had met his burden of proof to have 79 ballots rejected. On a
factual basis, Borys was able to demonstrate that the mandatory pre-conditions of the Act were
not met in regard to these ballots and there was simply no explanation offered by Opitz or
Elections Canada to adequately explain what had transpired at these Polls once Justice Lederer
had been satisfied that Borys met his evidentiary burden and overcame any presumption of
regularity. This is not, as suggested by Opitz, the act of a Judge reversing the onus of proof.
Rather this is what happens in every case where a plaintiff must marshal evidence to prove his or
her case. Then the defendant, where he or she believes that a non-suit cannot be obtained or that
TORONTO: 329319\1 (96776) 22
he or she cannot sit in silence, must then lead evidence and provide an alternate explanation to the
plaintiff’s version of events.
79. Furthermore, Opitz submits that irregularities cannot be cumulative so as to rebut the presumption
of regularity although he also contends that the demonstration that something was operated
regularly can be cumulative. Opitz’s selective double-standard approach was rightfully not shared
by the Manitoba Court of Appeal in Pollard v. Patterson, which upheld the decision of two
judges to declare the election in a provincial electoral district null and void. The two judges in
their decision said as follows:
The story told by the poll books is not, however, to be put aside as of no consequence or significance. Read with other irregularities on which petitioner complains, one may indeed question whether this election was conducted, not in accordance with The Elections Act, “but under some other method.”
Reference: Wrzesnewskyj’s Book of Authorities, Pollard v. Patterson, 1974 CarswellMan 95 (Q.B.), Tab 23, at para. 35, aff’d 1974 CarswellMan 114 (C.A.) at para. 13, leave to appeal to SCC refused 53 D.L.R. (3d) 215n (Man. C.A.)
80. Borys’ application was commenced as a result of various facts which became known after the
election and which were revealed during the mandatory judicial recount. There were problems
noted in over 50% of the PDs in Etobicoke Centre. There were reports of voter intimidation and
indeed an incident which resulted in voting being shut down for 30 minutes at a seniors’
residence because of the conduct of Opitz’s campaign manager. The latter incident was
documented in the record of complaints received by Elections Canada on Election Day and was
admitted by Elections Canada in Borys’ Request to Admit.
Reference: Joint Condensed Record, Request to Admit of Borys Wrzesnewskjy and Response to Request to Admit, Chief Electoral Officer and Returning Officer, Tabs 62 and 63
81. In the event that there is a presumption of regularity, it is respectfully submitted that Justice
Lederer’s decision would have been the same since once the presumption is rebutted, the
evidentiary onus shifts onto the party seeking to uphold the election to show that the irregularities
did not affect the results of the election. Opitz relies on the decision of McLachlin J. (as she then
TORONTO: 329319\1 (96776) 23
was) in Rose v. Cranbrook to support his argument regarding evidentiary requirements. Yet Her
Honour also said as follows:
The onus of establishing significant irregularities or failures to comply with the provisions of the Act rests on the petitioners. However, if error is established, the onus of showing that the irregularities did not materially affect the result lies on the respondents.
Reference: Wrzesnewskyj’s Book of Authorities, Rose v. Cranbrook (City), 1982 CarswellBC 597 (S.C.), Tab 24, at p. 5 (Westlaw)
82. Although the statute under consideration in Cranbrook was written in the negative, Lord Denning
rightly concluded that such provisions should be interpreted in the positive, which is how s. 524
of the Act is worded. The reasoning of Lord Denning has been widely applied by Canadian
Courts and was applied by the court in the Federal contested election case of O’Brien v. Hamel
where the saving provision under the then Canada Elections Act was written in the double
negative but properly interpreted by the Court in the positive. Contrary to the submissions of
Opitz, the wording under the prior Act has generally been read in exactly the same manner as the
wording of the present legislation. The present legislation was simply amended to clear up the
language in the legislation to recognize this long-standing positive interpretation of the double
negative language in the prior section.
Reference: Wrzesnewskyj’s Book of Authorities, O’Brien v. Hamel, supra, Tab 8, at para. 32 The word “irregularity” was properly interpreted broadly by Justice Lederer
83. Section 524 of the Act provides an individual with the right to contest an election on the grounds
of irregularity, fraudulent or corrupt and illegal practices. It has been held that this section is not
comprised of a genus of grounds upon which an election can be contested, but is rather comprised
of three separate categories or grounds.
Reference: Wrzesnewskyj’s Book of Authorities, Proctor v. Canada (Attorney General), 2004 SKQB 336 (CanLII), Tab 25, at paras. 16 and 17
84. Furthermore, the ordinary meaning of the word “irregularity” is a lack of conformity to rule, law,
or principle; deviation from what is usual or normal. More simply put, an irregularity is the doing
or not doing of something that ought or ought not to be done.
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Reference: Wrzesnewskyj’s Book of Authorities, The New Shorter Oxford Dictionary on Historical Principles, Lesley Brown, Tab 26, p. 1419
Reference: Wrzesnewskyj’s Book of Authorities, Black’s Law Dictionary, 6th ed., Tab 27, p. 829 85. A broad interpretation of the word “irregularity” is supported by considering that under prior
legislation, the “saving” provision (i.e. s. 524 of the Act) was restricted to enumerated instances
of irregularities, non-compliance or mistakes. The 2000 amendments to the Act removed that
limitation. Thus elections may now be challenged on the basis of any irregularity.
86. Indeed the Court in Cusimano v. Toronto (City) (a case heavily relied upon by Opitz) held that the
word “irregularity” as used in the Municipal Elections Act was to be interpreted broadly,
including “any non-compliance with the Act or regulations when dealing with voting”. The Court
held that there was no policy reason to interpret “irregularity” narrowly, since no irregularity
could be excused if it affected the outcome of an election.
Reference: Wrzesnewskyj’s Book of Authorities, Cusimano, supra, Tab 21, at para. 59 87. With respect to Opitz’s position that the Court erred in concluding that Borys established the
existence of irregularities, it is respectfully submitted that Opitz’s argument is based on pure
sophistry that if a ballot is in the box it must be a valid ballot. Justice Lederer accepted that based
on the evidence there was non-compliance with the Act and that he simply could not be satisfied
that unregistered voters were properly qualified and entitled to vote and that persons who voted
by vouching had met the mandatory statutory pre-conditions of identification in order to become
entitled to vote.
88. The submissions of Opitz represent an improper attempt to attack Justice Lederer’s findings of
fact based on the evidence in order to justify his circular theory that once a ballot is placed into
the ballot box it is necessarily a good ballot. At no point in time did Justice Lederer fail to or
improperly apply the presumption of regularity to find that there were irregularities which
affected the results of the vote. Justice Lederer held that Borys bore the onus of proof and merely
factually determined that the onus had been met.
TORONTO: 329319\1 (96776) 25
89. Opitz further complains that the paper evidence is insufficient to grant a declaration under the Act
and that there should have been testimony from electors, election officials, scrutineers or, the very
least an agreed statement of facts to support the application. This submission, with respect, is a
gross misrepresentation of the manner in which this contested application proceeded. The parties
consented to proceed in anonymity of the electors and to protect the secrecy of the vote. This is
similar to the way in which the O’Brien case proceeded. Second, election officials were not
readily forthcoming for any party and the neutral party, Elections Canada, chose not to produce
any of the officials as witnesses, leaving it to Opitz and Borys to attempt to contact them. In fact,
such contact was only after these officials received a cautionary note from lawyers for Elections
Canada that none of the officials were legally obligated to speak to anyone. With respect to
scrutineers, it has been held that regardless of what a scrutineer may or may not have done, this
does not act as a waiver or an estoppel from challenging votes which were improperly cast.
Lastly, reaching an agreement on a statement of facts requires co-operation from all of the parties.
There simply was not any agreed statement of facts circulated by anyone, including Opitz, who
seems to now complain in hindsight that there should have been one.
Reference: Wrzesnewskyj’s Book of Authorities, O’Brien v. Hamel, supra, Tab 8
Reference: Wrzesnewskyj’s Book of Authorities, Nielsen v. Simmons, 1957 CarswellYukon 1 (Terr. Ct.), Tab 9, at para. 41
90. Justice Lederer recognized the evidentiary limitations, and nevertheless found that there was
sufficient evidence for Borys to meet his burden of proof on the facts disclosed by that evidence.
Indeed since PBs and RCs are prescribed forms or records of Elections Canada, Justice Lederer
was entitled to draw adverse inferences where necessary.
91. As provided under s. 540(6) of the Act, the PBs, RCs and other documents certified by the CEO
became admissible as evidence in Borys’ contested election application.
Reference: Wrzesnewskyj’s Book of Authorities, Canada Elections Act, supra., Tab 5, s. 540(6)
TORONTO: 329319\1 (96776) 26
92. Furthermore, s. 30 of the Canada Evidence Act recognizes the admissibility of documents which
are completed in their ordinary course for a business purpose. Pursuant to s. 30(12) of this Act,
“business” means:
Any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government. (Emphasis added)
Reference: Wrzesnewskyj’s Book of Authorities, Canada Evidence Act, R.S.C. 1985, c. C-, Tab 28, s. 30 93. By falling within s. 30 of the Canada Evidence Act, the contemporaneously made PBs and RCs
were admissible for the truth of their contents and also for what they failed to contain. As
described in Sopinka on the Law of Evidence:
…if a record made in the usual and ordinary course of business does not contain information in respect of a matter, the occurrence or existence of which might reasonably be expected to be recorded in that record, that court may, upon production of the record, admit the record for the purpose of establishing that fact and may draw the inference that such matter did not occur or exist.
Reference: Wrzesnewskyj’s Book of Authorities, Sopinka, The Law of Evidence, 3rd ed. (LexisNexis: 2000), Tab 29, at p. 1237
Reference: Wrzesnewskyj’s Book of Authorities, Canada Evidence Act, supra, Tab 28, s. 30(2) 94. Opitz complains that the certified records contain hearsay and that Justice Lederer’s reliance on
them was dangerous. The certified records were created contemporaneous to the events. They are
the most reliable evidence. The only persons who bore witness to those events would have been
an election official and the elector. It is respectfully submitted that the evidence of an election
official would be subject to the frailties of time and the fact that he or she would have hundreds of
voters pass through a polling station on Election Day. Meanwhile, evidence from the elector
would be subject to the same frailties. But, moreover, the election should be protected from the
potential influence of a winning or losing candidate or a winning or losing government. As found
in Cusimano, it is difficult to accept that evidence gathered from electors by candidates could be
reliable.
Reference: Wrzesnewskyj’s Book of Authorities, Cusimano v. Toronto (City), supra, Tab 21
TORONTO: 329319\1 (96776) 27
Justice Lederer did not reverse onus of proof when reviewing RCs
95. Contrary to Opitz’s submission at para. 68 of his factum, Justice Lederer did not reverse the onus
of proof in considering the RC votes. Where RCs were missing, there was nothing to satisfy the
Learned Judge that unregistered electors had made the necessary declaration and signed same.
Similarly, when RCs were unsigned, there was nothing to satisfy Justice Lederer that these
electors had made the necessary declaration of qualification. Justice Lederer did not presume
irregularity as suggested by Opitz. Rather the Justice Lederer carefully considered the evidence
that was before him to demonstrate that on a balance of probabilities any presumption had been
rebutted and the scales had been tipped in favour of rejecting those votes.
96. Furthermore, it is a pre-condition of the Act that unregistered electors must complete an RC in
order to register to be placed on the list to obtain a ballot. Mandatory statutory pre-conditions
must be satisfied. For example, in Hogan v. Careen and Hickey, the failure to swear an oath
conditionally invalidated an election because the oath was a pre-condition to a voter receiving a
ballot. The result in Hogan was dictated by the clear requirements of the legislation, where
detailed and comprehensive statutory procedures were not followed. It is respectfully submitted
that the requirements dictated by the Act when it comes to completing an RC are clear, and that
the statutory procedures are detailed and comprehensive such that failure to meet them is fatal to
a ballot received in contravention of the Act.
Reference: Wrzesnewskyj’s Book of Authorities, Hogan v. Careen and Hickey, supra, Tab 20, at para. 71 Justice Lederer made findings of fact at Poll 426
97. At Poll 426, Justice Lederer made the factual finding that the evidence left him with discomfort
with respect to the completion of 33 RCs which were never produced by Elections Canada.
Justice Lederer noted that the election officials had never completed p. 31 of the PB as they were
required to do, there were two separate handwritings in the PB even though there only should
have been one, the comments of the DRO related to her RO during his investigation as to what
took place at PD 426 were too uncertain to demonstrate that RCs had been completed or, if so,
TORONTO: 329319\1 (96776) 28
completed properly, and the FLE did not list any of the unregistered electors who were recorded
on the Record of Electors as Voting by RC.
98. Although Justice Lederer was concerned that in the circumstances he could not be satisfied that
any of the electors listed on the record of electors voting by RC were qualified and had entitled
themselves to vote in accordance with the Act. It is respectfully submitted that his finding that the
evidence demonstrated that RCs had not, in fact, been completed provides an alternative ground
for rejecting the 26 votes. Only by completing an RC and having the elector sign the declaration
could the OLE be deemed amended so as to permit an unregistered elector to vote. Regardless of
whether a person has a right to vote, the right cannot be exercised until the elector has done what
is necessary to put him or her on the list of voters for the PD in which the vote is tendered.
Contrary to Opitz’s submission that completing an RC is directory only, the very object of
registration would be defeated and rendered meaningless by such a construction of the Act.
Reference: Wrzesnewskyj’s Book of Authorities, Paradis v. Bruneau, 1892 CarswellQue 11 (SCC), Tab 30, at paras. 20 and 23
Reference: Wrzesnewskyj’s Book of Authorities, Hogan, supra, Tab 20, at para. 26 99. In Hogan v. Careen and Hickey, the failure of 55 electors to take a prescribed oath, which was a
statutory prerequisite to voting was fatal to those votes. This failure prevented the electors from
being placed on the official list of electors. As with the Newfoundland legislation considered in
Hogan, under the Canada Elections Act unless a voter is registered in accordance with the Act,
either prior to or on polling day, that voter, although qualified to be registered, is not entitled to
vote.
Reference: Wrzesnewskyj’s Book of Authorities, Hogan, supra, Tab 20, at paras. 44 and 47 100. Any ex post facto evidence cannot cure this irregularity or any other irregularity. An entitlement
to vote cannot be bestowed retroactively on an elector who failed to properly entitle themselves to
vote on Election Day. As held in Hogan, the lack of entitlement to vote is the irregularity.
Reference: Wrzesnewskyj’s Book of Authorities, Hogan, supra, Tab 20, at para. 61
TORONTO: 329319\1 (96776) 29
101. An improperly cast vote on Election Day cannot later be made proper through adducing ex post
facto evidence. The only evidence that can be adduced to save ballots which have been
improperly cast as a result of failing to meet a pre-condition is evidence which shows that the pre-
condition was actually satisfied at the time of the vote. In Hogan, this onus rested on the party
seeking to uphold the validity of the ballots.
Reference: Wrzesnewskyj’s Book of Authorities, Hogan, supra, Tab 20, at paras. 65, 85 and 86 102. In this case, Justice Lederer rejected the evidence offered by Elections Canada to suggest that
RCs might have been completed, whereas Opitz presented no evidence on this issue despite
having had the opportunity to gather and present evidence from the DRO and Poll Clerk for PD
426.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2 103. Opitz contends that the fact the names were recorded in the PB indicates that they voted by RC
and that the RC was completed properly. This is pure speculation and turns the presumption of
regularity into a conclusion of regularity. Justice Lederer made his factual findings on the basis of
clear and cogent evidence to the contrary.
104. Furthermore, the argument is also suspect considering Opitz’s submission that some of the names
recorded in the PB were already on the OLE, and that these electors did not need an RC in order
to vote. Indeed some of the names listed in the PB were crossed-off the DROs OLE in accordance
with the standard procedure under the Act.
105. It is respectfully submitted that Justice Lederer’s factual findings made with respect to
invalidating 26 votes at Poll 426 should not be interfered with.
Justice Lederer made findings of fact at Poll 31
106. With respect to Poll 31, there were 16 RCs that were never produced by Elections Canada. Two
of those missing 16 RCs related to two persons who are recorded in the PB as residing outside of
Etobicoke Centre. If these electors had moved into Etobicoke Centre prior to Election Day, as
submitted at the hearing by Opitz, then they needed to complete and sign an RC in order to get on
TORONTO: 329319\1 (96776) 30
the OLE in Etobicoke Centre. Of further note, the address of the property purportedly purchased
in Etobicoke Centre by these two individuals was well outside of Poll 31 or any poll co-located
with Poll 31.
107. With respect to the remaining 14 electors, they also needed to complete an RC where they were
not on the OLE for PD 31. Otherwise the statutory pre-conditions had not been met and elections
officials at PD 31 simply could not be satisfied that they were qualified and entitled to vote and
should never have handed them a ballot.
108. From the evidence, PD 31 was clearly not operated with regularity. Regularity would have meant
that only electors ordinarily resident at PD 31 voted there. Yet the evidence accepted by all
parties was that 68 electors from outside PD 31 voted at this polling station and that 24 of those
68 had a place of ordinary residence outside any co-located poll in the centrally located polling
place which housed PD 31.
109. Furthermore, the DRO and Poll Clerk denied that any person who presented themselves with a
PD outside of PD 31 would be allowed to vote there. But the only RCs which contained a
completed PD number indicated that the ordinary residence of the electors was PD 34. All other
68 RCs produced were blank in the space provided for the PD number. Despite this, all of these
RCs were somehow accepted by the election officials at PD 31 apparently without question.2
110. Furthermore, the Registration Officer for this central polling place admitted that she did not
follow the rules and procedures of the Act when it came to the requirements that an elector must
only cast a ballot at the polling station for the PD where he or she is ordinarily resident. Given
these facts, Justice Lederer was entitled to reject these 16 votes.
111. With respect to Justice Lederer’s reason for finding that 1 of the 16 votes could be saved because
the elector was recorded on the FLE, Borys respectfully submits that none of the 16 voters at
2 During the inspection and production process, an Elections Canada worker wrote on the RCs the actual polling division of ordinary residence in the top right corner of the 70 produced RCs and circled this number. Accordingly, other than the two RCs mentioned in the body of the factum, these numbers did not exist on the face of the RCs on Election Day.
TORONTO: 329319\1 (96776) 31
issue was added to the FLE between the period of the election and the updating of this list. That
finding is not supported by the facts and therefore as set out in Borys’ appeal materials 1
additional vote ought to have also been rejected.
Justice Lederer was justified in rejecting votes where certificates were unsigned by the elector
112. With respect to the 11 unsigned RCs, one from PD 174 and 10 from PD 89, Opitz admits at
paragraph 114 of his factum that these RCs were not signed by the electors as required by the
statute. However, he contends that the requirement of the signature is directory only and that the
requirement to sign is completely in the hands and at the discretion and whim of the part-time
election official. This submission is, with respect, contrary to the plain language of the Act. The
declaration of qualification found on the RC is a pre-condition which all unregistered electors
must fulfill before being added to the OLE and given a ballot. There is a clear, mandatory
statutory pre-condition that the elector shall sign the RC in order to be placed on the OLE and
then given a ballot.
113. Furthermore, it is false to suggest that this requirement is completely in the hands of election
officials because RCs are often completed by Registration Officers at central polling places, as
was done with the 10 RCs at PD 89.3 At a central polling place, the RC would be handed to the
elector to take to his or her respective PD.
114. At Poll 174, all other RCs were duly signed by the elector, therefore signifying that electors did
have control there as well.
115. Furthermore, it is completely false on the part of Opitz to submit at para. 115 of his factum that
Borys seeks a system of perfection in the completion of RCs. As noted by Justice Lederer in his
reasons, Borys conceded that certain “irregularities” on the face of many RCs did not affect the
results of the election and were thus not relied upon.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 81
3 There is no dispute the PD 89 was centrally located with PDs 81, 82, 83, 84, 85, 86, 87 and 88.
TORONTO: 329319\1 (96776) 32
Vouching is a pre-condition of identification
116. With respect to vouching, it is respectfully submitted that the vouching provisions of the Act, as
found by Justice Lederer, are mandatory and that they, as part of the mandatory identification
requirements, are a pre-condition of entitlement to vote. The Act is structured in such a way that
one of its most fundamental protections is that an elector wanting to exercise his or her franchise
must prove their identity and residence. Knowing who an elector is, that they are who they say
they are, and that they actually reside in the proper PD is sacrosanct to the confidence of the
integrity of the Federal election process.
117. At para. 98 of his factum, Opitz simply misstates the relevant provision dealing with vouching.
Vouching has nothing to do with being crossed-off the list of electors. Instead, vouching involves
the recording of the vouchee and voucher in the PB upon the taking of the prescribed oaths.
Reference: Joint Condensed Record, Roussel Affidavit, Tab 51, para. 70 118. Furthermore, Opitz’s reliance on the Newfoundland case of Monaghan v. Joyce is misplaced. In
that case, the court was required to determine whether an elector who was vouched for by an
election official who knew the elector, represented a valid form of “identification” under s. 105(2)
of the Newfoundland Elections Act, 1991. Under the Newfoundland provision, an elector merely
needed to “produce identification”. Unlike under the Canada Elections Act, the Newfoundland
statute did not have a list of prescribed documents which electors were required to “produce”.
Accordingly, the court held that vouching was an acceptable form of identification under the
Newfoundland statute. This is wholly distinguishable from the comprehensive vouching
requirements under the Canada Elections Act, which includes a pre-condition that the vouchee
and voucher take a prescribed oath.
Reference: Wrzesnewskyj’s Book of Authorities, Monaghan v. Joyce, 2004 CarswellNfld 56 (SCTD), Tab 31, at paras. 11 to 14
Vouching was improper at Poll 30
119. At Poll 30, two election officials vouched for more than one elector each. Opitz suggests that this
is good vouching even though it violates the prohibition against multiple vouching and the fact
TORONTO: 329319\1 (96776) 33
that the two election officials were not from the same PD as the electors and therefore could not
have validly taken the prescribed oath.
120. In the case of Revel v. Gottfried, a case relied upon by Opitz, votes were rejected where the
voucher could not have taken the prescribed oath, where proper vouching procedures were not
followed and where there was no evidence of the voter or voucher being sworn. With respect to
the latter, the court drew an adverse inference that 15 voters were improperly added.
Reference: Wrzesnewskyj’s Book of Authorities, Revel v. Gottfried, [1975] M.J. No. 256 (Q.B.), Tab 32, at para. 17
121. It is respectfully submitted that the results in Revel and in other contested election cases where
votes have been rejected because of improper vouching do not differ in any way from the
decision of Justice Lederer. Accordingly, Justice Lederer was justified in rejecting the 4 identified
vouched votes.
Vouching was improper at Poll 21
122. Similarly, Justice Lederer was justified in rejecting 8 vouched votes in PD 21. Based on his
examination of the PB and the evidence contained therein he was entitled to reach the factual
conclusion that the proper vouching procedures were not followed. Without proper vouching the
mandatory identification pre-conditions to receiving a ballot had not been met and these persons
should never have received a ballot in order to cast it.
123. Justice Lederer was entitled to determine as a fact that these 8 electors required a voucher and to
infer that vouchers had not been sworn or may not have been qualified to vouch for the electors in
question.
Vouching was improper at Poll 502
124. At Poll 502, Justice Lederer found as a fact that the pre-conditions for vouching were not met
either and accordingly Justice Lederer was again justified in rejecting the 7 ballots cast as a result
of improper vouching. None of the vouchers were qualified to vouch and none of the vouchers
could therefore have validly taken the prescribed oath.
TORONTO: 329319\1 (96776) 34
125. While Opitz contends at para. 105 of his factum that mobile polls are different than ordinary polls
and that Parliament has delegated to the CEO the power to provide alternative instructions for
such polls, Elections Canada provided evidence that the vouching procedures of the Act apply at
mobile polls just as they do at ordinary polls or advance polls.
Reference: Joint Condensed Record, Roussel Affidavit, Tab 51, paras, 89, 91, 92 and 94 126. Furthermore, where election officials are trained to enforce the rules and procedures of the Act,
they should not be lauded for breaking them and effectively rewriting a statute passed by duly
elected Parliamentarians. They also should not be lauded for permitting persons to swear false
oaths. Canadians deserve better. It is exactly this kind of “freelancing” that erodes confidence in
the integrity of our electoral system.
127. Opitz relies on Revel to support his contention that greater flexibility should be allowed at Poll
502 to permit the vouched for votes to stand. However Revel dealt with a “hospital poll” where 5
people not on the list voted, the court decided to let their votes stand because the Act provided no
way for the 5 people who had to go to hospital on election day to otherwise vote. This is simply
not the case with the mobile poll in issue here under the Canada Elections Act. The residents
there could have easily found another elector from the same polling division to vouch for their
identity.
128. The 7 voters in question, like all other voters who require a voucher, could have and should have
been vouched for by a duly qualified and entitled voucher. By failing to meet the mandatory pre-
condition of identification set out in the Act, these voters were not entitled to receive a ballot and
were accordingly not entitled to cast that ballot.
Vouching was improper at Poll 174
129. At Poll 174, Justice Lederer rejected 8 ballots because of improper vouching. Justice Lederer
concluded that there was no way of knowing who was being vouched for and therefore what oath,
if any, had been taken. Justice Lederer also refused to undertake an ex post facto forensic analysis
as urged by Opitz to determine which people on the OLE could possibly have potentially vouched
TORONTO: 329319\1 (96776) 35
for the people listed. Justice Lederer found as a fact that proper vouching had not taken place and
that the mandatory pre-conditions for entitlement to receive a ballot had not been met.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2, at para. 146 130. It is respectfully submitted that Opitz provides no cogent reasons for overturning Justice
Lederer’s factual findings with respect to rejecting the 8 ballots cast as a result of vouching at
Poll 174.
131. However based on the Justice Lederer’s reasons for rejecting these 8 ballots, it is respectfully
submitted that he ought to have also similarly rejected the ballots cast by the electors 89-22-6 and
89-22-7 and electors 400-22-1 and 400-22-7 as set out in Borys’ appeal materials.
“Magic number” test should not be displaced
132. Opitz now submits, for the first time on this appeal, that in the event this Honourable Court
upholds the ballots rejected by Justice Lederer or concludes that 26 or more ballots from the
sampling of less than 5% of the PDs in Etobicoke Centre should be rejected, that the “magic
number” test ought not to apply because s. 524(1)(b) of the Act requires Borys to show with
certainty that the results were affected. This is simply not the meaning of s. 524(1)(b) of the Act.
133. It is respectfully submitted that Opitz is misreading a passage of Justice Lederer’s judgment with
respect to the burden of proof to support an unwarranted contention that in order for Borys to
succeed he would have to violate the sacrosanct secrecy of the ballot.
134. The only test adopted and accepted by the courts of various jurisdictions is the “magic number”
test and whether the number of ballots rejected equals or exceeds the plurality separating the first
place and second place candidate. At the hearing, Opitz accepted this test and urged the court to
apply it, with a speculative modification that was resoundingly rejected by Justice Lederer.
Reference: Joint Condensed Record, Decision of Justice Lederer, Tab 2 135. This submission is also contradictory to an earlier part of his factum where Opitz states: “Implicit
in the phrasing of the Act is the requirement that an applicant must establish that an alleged flaw
TORONTO: 329319\1 (96776) 36
is of a type that could affect the outcome of the election, otherwise it would be impossible to
show that it did, in fact, affect the result.
Reference: Opitz Appeal Factum, para. 26 136. Under the “magic number” test, Borys is only required to establish that 26 or more ballots went
into the ballot box which should never have been provided to the persons casting those ballots.
Any ballot improperly cast affects the results of the election. In Etobicoke Centre, 26 or more
persons improperly cast ballots. If proven on a balance of probabilities, this will have affected the
results of the election to the extent that neither the constituents nor the Court can be satisfied that
the winner was duly elected.
137. Although Opitz contends that the Court should be cautious to declare an election null and void
because it will lead to a by-election that cannot replicate the exact same conditions as on Election
Day, it is the only remedy available under the Act and therefore this argument should not
persuade the Court to avoid making a decision where the facts establish that more than a plurality
of electors were able to cast ballots even though the statutorily mandated pre-conditions entitling
an elector to exercise his or her right to vote were not followed.
138. Opitz’s argument is also based on the change of wording to s. 524 of the Act. Previously the
saving provision under the Act was worded in the double negative. It is now worded in the
positive. However, as already mentioned above, the negative incarnation of the saving provision
has been repeatedly interpreted in the positive by various courts considering the section.
Therefore, the amendment to the Act and the rewording of s. 524 to the positive does not take
away from the application of the “magic number” test.
139. Lastly, Opitz relies on a newspaper article written by Professor Tom Flanagan to support the view
that a rejection of 79 ballots would not affect the results of the election. Of course, Professor
Flanagan is a well-known Conservative. He has been Prime Minister Stephen Harper’s Chief of
Staff and during 2005-2006, he was the communications director for the Conservative election
TORONTO: 329319\1 (96776) 37
campaign. As noted in the article, Professor Flanagan has been a campaign manager for various
conservative candidates.
140. It is respectfully submitted that this Honourable Court disregard Opitz’s use of Professor
Flanagan’s newspaper article critiquing the judgment of the Honourable Mr. Justice Lederer.
Professor Flanagan’s partisan quasi-statistical analysis conveniently ignores that the 79 ballots
were rejected in a small sampling of less than 5% of the PDs in Etobicoke Centre.
Admissions made by Elections Canada
141. While Borys agreed to restrict the presentation of his case to only 10 of more than 230 PDs so
that his contested election application could be heard in a summary way and without delay, more
ballots could easily have been put into dispute. In a Request to Admit served by Borys, Elections
Canada admitted to 2 other instances of multiple vouching, and 13 additional instances of
vouching where the voucher did not reside in the same polling division as the vouchee.
Furthermore both Elections Canada and Opitz admitted that another person casting a ballot in PD
90 was listed in the PB with an address not in Etobicoke Centre. Lastly, Elections Canada
admitted to being unable to locate an additional 137 RCs. These irregularities represent only a
portion of the additional irregularities found in the over 230 PDs in Etobicoke Centre. Based on
the conclusions reached by Justice Lederer, many more than 79 ballots were theorectically
inappropriately given to people and cast so as to affect the results of the election. It is respectfully
submitted that if this Honourable Court accepts Opitz’s new “statistical” approach, it would
necessarily have to consider that this application considered only a very small statistical sampling
of the total polls in Etobicoke Centre.
142. Accordingly, there is ample justification for upholding Justice Lederer’s decision to declare the
41st General Election in Etobicoke Centre null and void.
TORONTO: 329319\1 (96776) 38
PART IV - COSTS
143. The Respondent seeks costs in accordance with the Tariff provided under the Rules of the
Supreme Court of Canada.
PART V – ORDER REQUESTED
144. It is respectfully submitted that Opitz’s appeal be dismissed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated: July 4, 2012 ______Gavin J. Tighe Gardiner Roberts LLP
______Stephen A. Thiele Gardiner Roberts LLP
Lawyers for the Respondent, Borys Wrzesnewskyj
TORONTO: 329319\1 (96776) 39
PART VI – TABLE OF AUTHORITIES
CASELAW Paragraphs
Fendelet v. Dohey, 2007 ONCA 475 (CanLII), Tab 7. 54
Haig v. Canada, [1993] 2 S.C.R. 995 , Tab 18. 63
Harper v. Canada (AG), [2004] 1 S.C.R. 827, Tab 1. 2
Henry v. Canada, 2010 CarswellBC 1089 (SC), Tab 11. 59
Housen v. Nikolaisen, [2002] S.C.R. 235, Tab 6. 54
Nielsen v. Simmons, 1957 CarswellYukon 1 (Terr. Ct.), Tab 9. 89
McMechan v. Dow, [1968] M.J. No. 47 (Q.B.)., Tab 15. 64
O’Brien v. Hamel, 1990 CarswellOnt 764, Tab 8. 64, 82, 89
Stoddart v. Owen Sound (Town), [1912] O.J. No. 24, leave to appeal 66 refused (1912), 4 O.W.N. 170 (C.A.), Tab 16.
Hogan v. Careen and Hickey, 1993 CarswellNfld 54 (TD), Tab 20. 3, 96, 98-101
Cusimano v. Toronto (City), 2011 ONSC 727 (Div. Ct.), leave to 12, 68, 86, 94 appeal granted, Tab 21.
Pollard v. Patterson, 1974 CarswellMan 95 (Q.B.), aff’d 1974 79 CarswellMan 114 (C.A.), leave to appeal to SCC refused 53 D.L.R. (3d) 215n (Man. C.A.), Tab 23.
Rose v. Cranbrook (City), 1982 CarswellBC 597 (S.C.), Tab 24 at p. 5 81 (Westlaw)
Proctor v. Canada (Attorney General), 2004 SKQB 336 (CanLII), Tab 83 25.
Paradis v. Bruneau, 1892 CarswellQue 11 (SCC), Tab 30. 98
Monaghan v. Joyce, 2004 CarswellNfld 56 (SCTD), Tab 31. 118
Revel v. Gottfried, [1975] M.J. No. 256 (Q.B.), Tab 32. 120
TORONTO: 329319\1 (96776) 40
LEGISLATION Paragraphs
Canada Elections Act, S.C. 2000, c. 9, Tab 5. 16, 17, 20, 23, 35-38, 44, 61, 70, 91
Interpretation Act, R.S.C., 1985, c. I-21, Tab 14. 62
Canada Evidence Act, R.S.C. 1985, c. C-5, Tab 28. 92, 93
BOOKS AND ARTICLES Paragraphs
“Returning officer worried workers not properly trained”, The Daily 74 News, May 6, 2011, www.canada.com/nanaimodailynews/news/story.html, CanWest MediaWorks Publications Inc., Tab 22.
The New Shorter Oxford Dictionary on Historical Principles, Lesley 84 Brown, Tab 26.
Black’s Law Dictionary, 6th ed., Tab 27. 84
Sopinka, Lederman & Bryant, The Law of Evidence, 3rd ed. 93 (LexisNexis: 2000), Tab 29.
OTT_LAW\ 3231356\1
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